Citation Nr: 1514822
Decision Date: 04/07/15 Archive Date: 04/21/15
DOCKET NO. 11-04 271 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for bilateral pes planus (flat feet).
2. Entitlement to service connection for scoliosis of the spine.
3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and post-traumatic stress disorder (PTSD).
REPRESENTATION
Veteran represented by: AMVETS
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Jeremy J. Olsen, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Army from February 1988 to February 1992.
This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO in Decatur, Georgia denied service connection for, inter alia, bilateral pes planus and an acquired psychiatric condition, to include anxiety and PTSD, and an October 2009 rating decision in which the same RO denied service connection for scoliosis of the spine. The Veteran filed her notice of disagreement as to the bilateral pes planus and the psychiatric condition in November 2008. A statement of the case (SOC) regarding those claims was issued in April 2010. The Veteran filed her substantive appeal (via VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. The Veteran filed her notice of disagreement concerning the scoliosis claim in October 2009, and a SOC was issued that same month. The Veteran filed her substantive appeal of that claim in February 2011. Jurisdiction over the claims has since been moved to the RO in St. Petersburg, Florida.
Subsequently, after the claims were in appellate status, the Veteran withdrew her claim as to the psychiatric condition. Accordingly, this claim will be formally dismissed below.
In February 2015, the Veteran testified during a Board video-conference hearing held before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. Following the hearing, additional medical evidence was submitted, along with a waiver of agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. §§ 20.800 and 20.1304 (2014).
This appeal was processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) claims processing system. In addition to the VBMS file, the Veteran has a paperless, electronic file in Virtual VA. A review of the Virtual VA file reveals that the documents contained therein are either duplicative of records in VBMS, or irrelevant to the claims on appeal.
The Board's disposition of the service connection claim for an acquired psychiatric condition, to include anxiety and PTSD, is set forth below. The service connection claims for bilateral pes planus and scoliosis are addressed in the remand following the order; these matters are being remanded to the AOJ for further action. VA will notify the Veteran when further action, on her part, is required.
FINDING OF FACT
During the February 2015 Board hearing, prior to the promulgation of a decision on the appeal, the Veteran, through her authorized representative, withdrew from appeal her claim for service connection for an acquired psychiatric disorder, to include anxiety and PTSD.
CONCLUSION OF LAW
The criteria for withdrawal of the appeal as to the claim for an acquired psychiatric disorder, to include anxiety and PTSD, are met. 38 U.S.C.A. §§ 511, 5107, 7104 (West 2014); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a); 38 C.F.R. § 20.101(a).
One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 19.4. The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. 38 C.F.R. § 20.101(d).
Although the Veteran perfected an appeal to the Board with respect to the July 2008 denial of service connection for an acquired psychiatric disorder, to include anxiety and PTSD, during the February 2015 Board hearing the Veteran, through her representative, stated that she would like to withdraw the claim from appeal, and submitted a written request to that effect.
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn at any time before the Board promulgates a decision, and the withdrawal of an appeal may be made by the claimant or by her authorized representative. 38 C.F.R. § 20.204. Here, the Veteran has withdrawn her appeal as to the claim for service connection for an acquired psychiatric disorder, to include anxiety and PTSD. Therefore, there remain no allegations of errors of fact or law for appellate consideration. As such, the Board does not have jurisdiction to review this claim, and it must be dismissed.
ORDER
The appeal as to the claim for service connection for an acquired psychiatric disorder, to include anxiety and PTSD, is dismissed.
REMAND
The Board's review of the claims file reveals that further AOJ action on the service connection claims for bilateral pes planus and scoliosis, the matters remaining on appeal, is warranted.
The Veteran contends that her bilateral pes planus, which was noted at her entry into service, and her scoliosis, which was noted at exit, were both permanently aggravated by the exercises and training she underwent while in service.
With respect to her bilateral pes planus, the Veteran maintains that the exercises she performed while on active duty, described as road marches and 3 to 4 mile runs, caused her feet to cramp to a point where she now has to wear arch supports in her shoes.
The Veteran's entrance examination report notes mild bilateral pes planus. Her service treatment records are negative for any mention of treatment for bilateral pes planus, and are negative for complaints, clinical findings, treatment or a diagnosis relating to the condition. A private medical record from October 2007 shows the Veteran was treated for foot pain due to a swollen blood vessel. At that time, her pes planus was again noted, and she was diagnosed with bunions.
Regarding her scoliosis, the Veteran explained that she experiences back pain with a sudden onset. She contends that the activities she undertook as part of basic training-including running and carrying rucksacks, duffel bags and machine guns-aggravated her scoliosis.
The Veteran's service treatment records show that she had a normal spine upon enlistment examination in October 1987. The Veteran's service treatment records are negative for any mention of treatment for a back condition. However, her January 1993 separation examination shows an impression of mild scoliosis. Post-service, her private medical records show multiple treatments for lower back pain in 2008 and in 2013. During her February 2015 hearing, the Veteran raised the contention that an in-service fall may have aggravated her scoliosis.
In addition, the Board notes that the Veteran and her husband have submitted statements explaining, and the Veteran herself testified, that she underwent her exit exam in Germany in January 1993, nearly a year after her discharge. The Veteran stated that the Army misplaced the report of her first separation examination, as well as the examination report related to a second examination. The Board notes that her claims file contains only the January 1993 examination report.
Pursuant to VA's duty to assist a claimant in the development of facts pertinent to the claim, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c)(4) (West 2014). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83.
To date, no VA examination has been conducted or medical opinion obtained in conjunction with the Veteran's service connection claim for bilateral pes planus or for scoliosis. However, in light of the evidence currently on file, the Board believes that the threshold requirements discussed in McLendon are arguably met with respect to each of these claims, warranting an examination and appropriate medical opinions to fulfill VA's duty to assist. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2014) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).
Hence, the AOJ should arrange for Veteran to undergo VA podiatry and spine examinations, by appropriate physicians. The Veteran is hereby advised that failure to report for any scheduled examination(s), without good cause, may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2014). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.
Prior to arranging for the Veteran to undergo the above-noted examinations, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.
As for VA records, the Board observes that a review of the Veteran's file indicates she sought treatment at the Tampa VA Medical Center in 2005 and 2008. Therefore, outstanding VA treatment records pertaining to her claims may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462,466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611,613 (1992). Accordingly, the AOJ should obtain all outstanding, pertinent VA records of evaluation, hospitalization, and/or treatment of the Veteran since January 2008, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.
The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal, explaining that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private (non-VA) records-to include the medical clinic in Brandon, Florida, associated with the MacDill Air Force Base (where she receives regular treatment), and the Brandon Regional Hospital, Brandon Foot Care Center, Rehab Therapy Works of Brandon, and the Care Plus Walk-in Clinic (where she has received treatment in the past).
Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2014).
The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal.
Accordingly, these matters are hereby REMANDED for the following action:
1. Obtain from the Tampa VA Medical Center all outstanding, pertinent records of evaluation, hospitalization, and/or treatment of the Veteran, since January 2008. Follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.
2. Furnish to the Veteran and her representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the service connection claims for bilateral pes planus and scoliosis that is not currently of record.
Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private (non-VA) medical records-to include from the MacDill (Air Force Base) Community Clinic in Brandon, as well as the Brandon Regional Hospital, Brandon Foot Care Center, Rehab Therapy Works of Brandon, and the Care Plus Walk-in Clinic.
Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period).
3. If the Veteran responds, obtain all identified evidence e not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2014). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA podiatry examination by an appropriate physician.
The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail.
The examiner is asked to render opinion(s), based on sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability ) that the pes planus noted on the Veteran's entrance examination in October 1987 underwent a permanent (as opposed to a transient or temporary) increase in severity during service, resulting in her current foot disability; and, if so, whether it is clear and unmistakable (i.e., obvious, manifest, or undebatable) that the increase in severity was due to the natural progress of the disease.
In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. All examination findings, along with complete, clearly-stated rationale the conclusions reached, must be provided.
5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA spine examination by an appropriate physician.
The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail.
The examiner is asked to render opinions, based on sound medical principles, with respect to the following:
With respect to current scoliosis, the examiner should opine whether the disorder is congenital or developmental in nature. If deemed congenital or developmental, the examiner should indicate whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disorder was aggravated (i.e., permanently worsened beyond natural progression) due to superimposed in-service injury or disease.
If the Veteran's scoliosis is not deemed to be congenital or development in nature, the examiner should indicate whether scoliosis clearly and unmistakably existed prior to service; and, if so, whether the disability was clearly and unmistakably not aggravated (i.e., permanently worsened beyond natural progression) during or as a result of service (in particular, due to injury therein).
If the examiner determines that scoliosis did not clearly and unmistakably pre-exist service, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was incurred during service.
In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. All examination findings, along with complete, clearly-stated rationale for the conclusions reached, must be provided.
6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998).
7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority.
8. If any benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response.
The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West 2014).
______________________________________________
JAQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs